The recent decision by the Labour Court in Moleme v Induradec Coatings (Pty) Ltd found that an employer who had placed an employee on extended unpaid maternity leave due to the health and safety risks of her role, had unfairly discriminated against her on the ground of pregnancy.
The judgment serves as an important reminder to employers of their obligations towards pregnant employees who perform work that potentially poses a danger to their health and safety, or that of their children, particularly those articulated in the Basic Conditions of Employment Act, 1997 (BCEA) and the Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child (Code).
Legal framework
The Court was called upon to consider whether the employer had complied with section 26(1) of the BCEA, which prohibits employers from requiring or permitting a pregnant employee or an employee who is breast-feeding to perform work that is hazardous to the health of the employee or the health of her child, and the Code, which is intended to guide all employers and employees on the application of section 26(1).
In terms of clause 5 of the Code, where an employee notifies an employer that she is pregnant, her situation in the workplace should be evaluated, including the employee’s physical condition, her job, and the potential workplace exposures that may affect the employee. If the evaluation reveals a risk to health and safety, the employer must determine what steps should be taken to prevent the exposure by adjusting the employee’s work conditions. If there is any uncertainty or concern about whether the employee’s workstation or working conditions should be adjusted, it may be appropriate to consult an occupational health practitioner.
The Court also considered whether the employer had complied with its obligation in terms of section 26(2) of the BCEA to offer the employee suitable, alternative employment on no less favourable terms and conditions. The obligation to offer alternative employment arises where appropriate adjustments cannot be made, and it is practicable for the employer to do so.
Litigation history
Ms Moleme was employed as a chemist at Induradec Coatings (Induradec), a chemical coatings company, where she was involved in both research and product development. After having notified her employer that she had fallen pregnant, Ms Moleme raised a concern regarding working in Induradec’s laboratory as she felt this would expose her to certain chemicals, and requested that she be moved. Ms Moleme was immediately moved out of the laboratory by Induradec’s Technical and Commercial Manager (Mr Powell). No work functions were assigned to her for many weeks.
Ms Moleme was requested to approach both her gynaecologist and general practitioner to confirm whether she could continue working in the laboratory using a respirator provided by Induradec, or whether there were other recommendations that could be implemented. Both the gynaecologist and general practitioner advised that this question was beyond their expertise and recommended that Induradec consult a qualified health and safety professional. Mr Powell met with someone alleged to have previously lectured the discipline of health and safety – but an actual investigation was not conducted.
Ms Moleme was then called to a meeting to consult on the way forward, during which she was informed that Induradec was considering placing her on extended, unpaid maternity leave because it had not been able to identify any alternative positions in which she could be accommodated. Ms Moleme rejected this suggestion and pointed to section 26(2) of the BCEA and clause 5 of the Code, of the view that these provisions required her employer to provide alternative employment for her. Notwithstanding these representations, Ms Moleme was placed on extended, unpaid maternity leave in May 2023.
Ms Moleme referred a dispute to the CCMA in terms of section 10 of the Employment Equity Act, 1998 (EEA), which was not resolved at conciliation. In January 2024, shortly after her maternity leave was scheduled to have expired, Mr Powell sent Ms Moleme a message accusing her of being absent without leave. Ms Moleme resigned from employment in response, citing the extended unpaid leave as the reason for her having lost her home, car, good credit record and the reason for her having to move back in with her family in Johannesburg due to lack of an income. She then referred her dispute to the Labour Court.
Findings of the Labour Court
Before the Labour Court, Ms Moleme submitted that she had been unfairly discriminated against by Induradec based on her status as a pregnant woman; and that Induradec had not complied with section 26 of the BCEA in removing her from the laboratory without any duties or functions, and placing her on extended, unpaid maternity leave.
In this regard, Induradec accepted that its actions amounted to discrimination. Section 11(1) of the EEA therefore required Induradec to prove, on a balance of probabilities, that such discrimination was rational and not unfair, or was otherwise justifiable. In this regard, the basis for its defence was that it had complied with its obligations under the BCEA and the Code.
The Labour Court considered the provisions of the Code and held that notwithstanding the initial position adopted by both Ms Moleme and Mr Powell concerning the potential risks inherent in Ms Moleme continuing to work in the laboratory, it may nevertheless have been possible for Ms Moleme to continue working in the laboratory. This would only have been determinable once Induradec had investigated the extent of the risks and the feasibility of any modifications or adjustments to Ms Moleme’s working conditions.
The Labour Court held that, in line with what had been suggested to Mr Powell by various professionals, what was required of the employer in these circumstances, was to obtain the services of an expert in health and safety to conduct the investigation envisaged under paragraph 5.10 of the Code. Failure to do so meant that when Induradec placed Ms Moleme on extended, unpaid maternity leave, it was not yet clear whether any adjustments could have been made to enable her to continue to perform her job as a chemist safely during her pregnancy.
As for the requirement to provide alternative work, the Court noted that section 26(2) does not place an absolute obligation on employers to source alternative work for pregnant employees who are not able to render their ordinary duties – this is only required where it is practicable for the employer to do so. Induradec had at least established that there was no available alterative position for Ms Moleme and that it was not practicable to retain her to perform a research function only. Therefore, in the circumstances, the Court found that Induradec had complied with its obligations under section 26(2) of the BCEA.
However, in the absence of an actual assessment into working conditions, Induradec had not established that it was actually necessary to remove Ms Moleme from the laboratory for the duration of her pregnancy. Therefore, Induradec had failed to establish that its decision was ‘rational and not unfair, or otherwise justifiable’. It had thus unfairly discriminated against Ms Moleme.
Having only received representations on compensation from Ms Moleme, the Court found it just and equitable to award Ms Moleme 11 months’ salary as compensation for her patrimonial losses (for the four months she was ‘forced’ to be on unpaid leave) and the infringement of her dignity.
Key takeaways
When it comes to their health and safety obligations, employers should be wary not to act in haste, even if under the belief that they are taking necessary steps to protect a pregnant employee from a potentially hazardous working environment.
It is crucial that it first be determined whether the working environment or duties of a pregnant employee actually do pose a risk to her health or the health of her baby, and if so, whether the employee’s working environment or duties may be adjusted to allow her nevertheless to continue working safely during her pregnancy. Only where such an investigation shows that there are risks, and that no adjustments that can be made, would an employer be required under section 26(2) of the BCEA to consider suitable, alternative employment on terms and conditions no less favourable than her ordinary terms and conditions of employment. Such an offer of alternative employment need only be made where it is practicable for the employer to do so. If it is not practicable for the employer to do so, extended maternity leave could then be considered.
Employers should ensure that all decisions in this regard are well-documented, informed by expert input, and based on a clear understanding of the risks and available accommodations.
